The Third District Court of Appeal State of Florida (“Florida Appellate Court”) stated in its opinion filed on August 1, 2018 that the Florida Legislature’s 2011 amendments to section 768.28, contained in subsections (9)(b) and (10)(f), did not violate the sovereign immunity, equal protection, due process, access to courts, jury trial, and private debt provisions of
the Florida Constitution.
2011 Amendments To Section 768.28
In 2011, the Florida Legislature expanded the immunity in sections 768.28(9)(b) and (10)(f) of the Florida Statutes to cover nonprofit independent universities that agree to provide patient services at government teaching hospitals as part of an affiliation agreement. Ch. 11-219, § 3, at 3345-47, Laws of Fla. Such universities and their employees, the amendment provided, would be treated as agents of the government teaching hospital, and covered by the immunity in section 768.28, to the extent they were providing patient services consistent with the affiliation agreement.
Pursuant to sections 768.28(9)(b) and (10)(f), the University of Miami Leonard M. Miller School of Medicine entered into an affiliation agreement with the Miami-Dade County Public Health Trust – the government agency that operates Jackson Memorial Hospital. The university, based on the expanded immunity, moved to dismiss the lawsuits of two Florida medical malpractice plaintiffs who were allegedly injured by university doctors who treated them at Jackson hospital. The plaintiffs responded that the amendments to section 768.28 unconstitutionally expanded sovereign immunity; violated the plaintiffs’ rights to equal protection, due process, access to courts, and a jury trial; and unconstitutionally pledged the state’s credit to a private university. The trial courts found that the expanded immunity did not violate the Florida Constitution, and the plaintiffs appealed.
Florida Appellate Court Opinion
The Florida Appellate Court stated that the Florida courts, state and federal, have extended section 768.28 immunity to private companies and their employees where there is a sufficient degree of control retained or exercised by the state entity.
In the present case, the Florida Appellate Court held that the 2011 affiliation agreement showed that the trust retained and exercised a degree of control over the university such that it created an agency relationship. Because the university was the trust’s agent for purposes of providing patient services at Jackson hospital, the legislature’s decision to expand immunity in sections 768.28(9)(b) and (10)(f) to cover the university as the trust’s agent does not violate article X, section 13 in the Florida Constitution.
The Florida Supreme Court has rejected a right-to-jury-trial challenge to section 768.28 immunity: “While the section does limit recovery allowable against municipalities, it substantially broadens recovery allowable against state governmental entities generally. . . . In conclusion, we hold that the statute clearly relates to a permissible legislative objective and is neither discriminatory, arbitrary, nor oppressive in its application. The statute does not violate the right to . . . jury trial . . . . It provides a fair means of recovery against governmental entities for the negligent acts of their employees and officials.”
The Florida Constitution provides that “[a]ll natural persons, female and male alike, are equal before the law,” and “[n]o person shall be deprived of life, liberty or property without due process.” Fla. Const. art. I, §§ 2, 9. The Florida Appellate Court held that sections 768.28(9)(b) and (10)(f) do not violate the equal protection and due process clauses, citing a prior appellate case that stated, “We find no merit in appellants’ argument that due process and equal protection considerations preclude the application of sovereign immunity to shield the doctors from liability in this cause. Florida courts have ruled the immunity statute constitutional when applied to a physician who, within the scope of his governmental employment, negligently caused injury to another.”
The Florida Appellate Court further held that sections 768.28(9)(b) and (10)(f) do not unconstitutionally restrict access to the courts by placing a cap on damages (the Florida Constitution provides that “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” Fla. Const. art. I, § 21). The Florida Appellate Court stated that in effect, the plaintiff’s cause of action has been limited by a cap of $50,000 per claimant/$100,000 per occurrence – “[w]hile this is a matter of concern, it is not a sufficiently compelling reason to render the statute unconstitutional … even where a cause of action is reduced, as opposed to being destroyed, it is not essential that the legislature provide a substitute remedy.”
Likewise, the Florida Appellate Court found no violation of article VII, section 10 (the Florida Constitution provides that “[n]either the state nor any county, school district, municipality, special district, or agency of any of them, shall . . . give, lend or use its taxing power or credit to aid any corporation, association, partnership or person.” Fla. Const. art. VII, § 10).
The Florida Appellate Court concluded: “The legislature’s 2011 amendments to section 768.28, contained in subsections (9)(b) and (10)(f), did not violate the sovereign immunity, equal protection, due process, access to courts, jury trial, and private debt provisions of the Florida Constitution.”
Source Bean v. University of Miami d/b/a Miller School of Medicine, Nos. 3D16-2221 & 3D16-2195.
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